U.S. domestic violence law could change

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COEUR d’ALENE — With the federal Violence Against Women Act set to expire Sept. 30, members of Congress are jockeying for position to reauthorize or amend the law.

Earlier this month, Rep. Sheila Jackson Lee, D-Texas, introduced HR 6545, which would expand the definition of domestic violence from “felony or misdemeanor crimes of violence committed by a current or former spouse or intimate partner of the victim” to include “a pattern of behavior involving the use or attempted use of physical, sexual, verbal, emotional, economic, or technological abuse or any other coercive behavior committed, enabled, or solicited to gain or maintain power and control over a victim.”

The definition of technological abuse includes “unwanted, repeated telephone calls, text messages, instant messages, or social media posts.”

This broader definition contrasts with state law, which Kootenai County Sheriff’s Office spokesman Det. Dennis Stinebaugh said local law enforcement officers use to charge accused domestic violence perpetrators. Idaho Code 18-918 designates harm to one’s body by the physical force of a household member as traumatic injury. That is considered felony domestic violence, and it carries a penalty of up to 10 years in prison and a $10,000 fine.

Under the same state code, a household member who commits an assault or battery not resulting in traumatic injury is guilty of misdemeanor domestic violence. The maximum penalties may be doubled if the alleged crime takes place in the sight or hearing of a child under 16.

Idaho State Police statistics show that in 2016, the state recorded 6,084 cases of intimate partner violence.*

On party lines

Lee’s proposal is a partisan one, having more than 100 Democratic co-sponsors and zero Republican co-sponsors. That stands in sharp contrast to the original VAWA, which was passed on a bipartisan basis in 1994 and reauthorized again by bipartisan majorities in 2000 and 2005. Reauthorization bogged down in 2012-13 thanks to additions to the core of the law, such as giving Indian tribal law enforcement jurisdiction over non-Indians, expanding federal domestic violence laws to same-sex couples, and fast-tracking naturalization for immigrants who allege domestic violence by their intimate partners.

Nonetheless, the Senate’s 2013 VAWA reauthorization bill passed the Senate 78-22 with 23 Republicans in support, and passed the House 286-138, with 87 Republicans in support. Sen. Jim Risch and Rep. Raul Labrador voted in opposition, while Sen. Mike Crapo voted in favor.

Lee’s bill gives law enforcement agencies additional power to confiscate firearms by adding anyone convicted of misdemeanor stalking to the list of those to whom it is illegal to sell firearms. Current federal law prohibits firearms sales to anyone subject to restraining orders and those convicted of misdemeanor domestic violence.

In addition to defining domestic violence and spelling out prohibitions related to domestic violence offenses, VAWA acts mainly as a funding mechanism for distributing hundreds of millions of federal dollars per year. According to the National Network to End Domestic Violence, the 2017 budget for STOP Violence Against Women grants alone totaled $215 million, with total dollars from VAWA via the departments of Justice, Commerce, and other offices amounting to $481.5 million. NNEDV put the dollar total of domestic violence-related programs nationwide at more than $2 billion annually.

Local impact

Under VAWA, the Idaho State Police had $1,271,774 of STOP Violence Against Women grant funds available to disburse to local governments and nonprofit organizations in 2017. ISP spokesman Tim Marsano said in March 2018 that the Coeur d’Alene Police Department was awarded $65,396 to fund a victim services advocate; the Post Falls Police Department was awarded $46,089 to partially fund a deputy city prosecutor and group counseling for victims of domestic violence, sexual assault, stalking, and dating violence; and Safe Passage was awarded $40,626 to provide support and advocacy services to sexual assault survivors and coordinating services with the Sexual Assault Response Team (SART) and other partner agencies, as well as $55,420 to provide direct services to survivors who need guidance and support accessing civil or criminal court and to provide outreach and education to the community.

Marsano said ISP also subawards VAWA funds to the Idaho Coalition Against Sexual and Domestic Violence, “who then subawards funds to organizations around the state providing direct services to victims of sexual assault.”

VAWA has been criticized by diverse constituencies over the years. As a Feb. 27, 2013 Time magazine article explained, VAWA has used federal grants as incentives for states to enact mandatory arrest practices.

Stinebaugh said Idaho does not practice mandatory arrests for domestic violence incidents, but Washington does. Critics say mandatory arrests and prosecutions without the cooperation of alleged victims have created more problems for victims of domestic violence. A 2007 study by Harvard researcher Radha Iyengar found that the VAWA provisions actually led to decreased reporting and increased intimate partner homicides, yielding “perverse effects on intimate partner violence, harming the very people they seek to help.”

Kootenai County may prosecute domestic violence cases even if the victim is unwilling to cooperate, said Kootenai County prosecutor Barry McHugh.

“We evaluate the evidence that’s been presented to us to determine whether or not we believe a crime has been committed, and then we have to decide whether we can proceed whether the victim is cooperative or not. Evidence-based prosecution is something we’ve been utilizing for a number of years.”

Victim responsibilities

If a victim is subpoenaed and does not show up for a court date, the victim can be arrested and compelled to testify. If the victim refuses to testify, the court can hold the person in contempt of court.

McHugh said that usually means the person will sit in jail until she decides to cooperate with the court’s order, or for as long as the trial is underway. If a victim is willing to testify but gives testimony inconsistent with prior testimony, the person could face perjury charges. McHugh said he’s never seen that happen, but he has seen victims sit in jail for refusing to testify. That’s more of a court decision than a prosecutorial decision, he explained.

In some quarters, the law has been criticized as discriminatory against men.

Phyllis Schlafly, the late founder of Eagle Forum, wrote the following in a July 15, 2011 column: “VAWA is just about as sex discriminatory as legislation can get...Women who make domestic violence accusations are not required to produce evidence and are never prosecuted for perjury if they lie. Accused men are not accorded fundamental protections of due process, not considered innocent until proven guilty, and in many cases, are not afforded the right to confront their accusers.”

Crapo spokesman Lindsay Nothern said the bill that reauthorizes VAWA this year will likely come out of the Senate Judiciary Committee. Crapo serves on the committee and was the lead Republican sponsor for VAWA in past years. Because the committee is headed by Sen. Chuck Grassley, R-Iowa, Grassley may take the lead in this year’s version, said Nothern.

Nothern also said that he didn’t know if the Senate version would be significantly different from the current law. A spokesman for Risch said the senator would wait to comment until the Senate had its own VAWA reauthorization proposal.

*EDITOR’S NOTE: This story was revised to show that there were 6,084 cases of intimate partner violence recorded in Idaho in 2016. The first version of this story incorrectly stated that figure was for Kootenai County.

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